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Shubham Coke and Coal (India) Pvt. Ltd., Shikhar Coal and Minerals (India) Pvt. Ltd. Versus Commercial Taxes Department

2016 (5) TMI 734 - MADHYA PRADESH HIGH COURT

Seeking quashment of assessment order and auction notice - Arbitrariness in making an order by an authority and violation of principle of natural justice - Petitioners were thrice accommodated by the learned Assessing Authority and they waited till the last date of limitation for passing the final assessment order and fixed the case for 28/02/2015 but on that date Shri Narendra Bam, learned CA, who was engaged by the petitioners failed to appear nor he pointed out the authority that Shri Radhesh .....

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heir counsel before the respondent No.2. Accordingly, the impugned order dated 23/07/2015 by which his application under Section 34 of VAT Act, 2002 has been rejected is set aside, subject to depositing 10% of the amount in question within two weeks from the date of this order and on producing the material/evidence. The learned authority thereafter shall consider the material produced by the petitioner and pass the order afresh on application under Section 34 of VAT Act, 2002. - Decided partly i .....

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both these writ petitions under Article 226 of the Constitution of India, the petitioners are praying for quashment of Assessment Order dated 23/07/2015(Annexue-P/1) and Auction notice dated 17/08/2015(Annexure-P/2) on the ground of arbitrariness in making an order by an authority and violation of principle of natural justice. 4. Brief facts of the case are that the petitioners are a Private Limited Company, trading in coal and are registered with the respondent/Department. The petitioners/comp .....

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15 and W.P. No.5801/2015) respectively shall be recovered as an arrear of land revenue. 5. The petitioners without following the alternative remedy of preferring an appeal against the Assessment Order has filed an application for review under Section 34 of the VAT Act, 2002 on the ground that the counsel who was to be present for assessment was ill. Along with the application doctor's certificate dated 1.3.2015 was also filed. As per the aforesaid certificate, Shri Radheshyam Carpenter, CA, .....

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by the learned Senior Counsel for the petitioners that the application was not considered on merit nor any hearing was provided to the petitioner. He submitted that immediately after passing of order dated 23/07/2015, attachment proceeding has been initiated and auction notice of the property was issued without application of mind and, therefore, deserves to be quashed. He placed reliance on the decision of the Division Bench of this Court in the case of Mahaveerprasad Jain v. Commissioner of In .....

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was posted for hearing and prays that both these writ petitions be allowed and impugned action be quashed. 8. Per contra, Shri P. Bhargava, learned Dy. A.G. for the respondents/State has drawn our attention to the typed order-sheets of orders dated 29/12/2014, 31/12/2014 and 15/02/2015 in respect of proceedings of original assessment and submitted that on 28/02/2015, no one gave appearance on behalf of petitioners nor Shri Narendra Bam , CA, counsel, who was appearing on behalf of petitioners t .....

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the provision of VAT Act, 2002. To avoid payment of sum, he directly approached this Court whereas the proper and legal course for the petitioners is to file a statutory appeal under Section 46 of the VAT Act, 2002 where all those questions can be decided. He lastly submitted that for the Assessment Year 2012-2013, last date of limitation of passing the order by the Assessing Authority of the Department was 28/02/2015 and, therefore, the Assessing Officer accommodated the petitioners right from .....

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ns. 9. Order-sheets dated 29/12//2014, 31/12/2014, 15/02/2015 and 28/02/2015 are relevant which reads as under:- 10. Section 34 of the VAT Act, 2002 reads as under:- 34. Power to set aside an ex parte order (1) Where in the proceedings for assessment/reassessment of any dealer referred to in clause (a) of sub-section (4) of Section 20 for any period, an order is passed ex parte, the dealer may, within thirty days from the date of service of such order apply to the assessing authority to set asid .....

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such an application shall be entertained only once in the course of such proceeding. (2) Where an order of ex parte assessment of a registered dealer is set aside and case reopened under this section for making a fresh assessment, such fresh assessment shall be made within a period of six calendar months from the date of setting aside the ex parte of assessment or within the period laid down in clause (1) of sub-section (7) of Section 20, whichever is later. 11. From the aforesaid order-sheets, .....

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ngaged or not well on 28/02/2015. The last date for assessment for the year 2012-13 was 31/12/2014, but vide Notification No.2 dated 15/01/2015, an extension was granted upto 28/02/2015, therefore, in the present case, inspite of opportunity granted to the petitioners for adducing the evidence, no one gave appearance on their behalf nor any material was produced to prove otherwise. Thus, the Department was left no other option, but to pass the final assessment order on the last date of limitatio .....

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omission, or misdemeanour of his agent. May be that the learned Advocate absented himself deliberately or intentionally, but where the parties generally appear through their Advocates, the obligation of the parties is to select his Advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. Following the principle laid down by the Apex Court in the case of Rafiq(supra), the Division Bench allowed the application and restored the miscellaneo .....

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